Criminal Appeal (SJ) No. 24 of 1997
(Appeal against the Judgment and Order dated
29.11.1996 passed by the 1st Additional
Sessions Judge, Sitamarhi, in Sessions Trial
No. 236 of 1995/37 of 1995.)
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MOHAMMAD AIZAZ ANSARI @ MOHAMMAD AIZAZ, SON OF
MD. MOLAJIM, RESIDENT OF VILLAGE GOPAIYA, P.S. &
DISTRICT SHEOHAR, AT PRESENT RESIDERNT OF
INSPECTION BUNGLOW, P.S. & DISTRICT SITAMARHI.
…. …. APPELLANT
Versus
THE STATE OF BIHAR
…. …. RESPONDENT
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Appearance :
For the Appellant : Mr. Prasoon Sinha, Adv.
For the State : Mr. C. Jawahar, A.P.P.
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PRESENT
THE HON’BLE JUSTICE SMT. ANJANA PRAKASH
Anjana Prakash, J: The Appellant has been convicted under Section 376 of the
Indian Penal Code and sentenced to rigorous imprisonment for seven
years as also a fine of Rs. 1,000/- in default of which further rigorous
imprisonment for six months by the 1 st Additional Sessions Judge,
Sitamarhi, in Sessions Trial No. 236 of 1995 by a judgment dated
29.11.1996.
2. The case of the prosecution is that while the S.I. of Outpost
was on patrolling duty, in the evening, he heard near the circuit house
that some occurrence had taken place. He proceeded there and
recorded the statement of the prosecutrix that when she was cleaning
utensils, at about 3.00 P.M. on 27.6.1995, the Appellant who was the
son of the cook took her to a nearby room and closed it and, thereafter
raped her. When the people started raising a cry and knocked the door
of the room, the Appellant allegedly opened the door and he was
Patna High Court CR. APP (SJ) No.24 of 1997 dt.11-07-2011 2
arrested there and then. The prosecutrix as well as the Appellant were
produced before the Doctors for their physical examination and they
were examined by PW-2 and PW-3. Both the Doctors who examined the
prosecutrix and the Appellant, did not find any sign of sexual intercourse.
3. During trial, the prosecution examined eight witnesses out
of whom PW-1 Maina Devi is the mother of the victim. PW-4 is the victim
herself whereas PW-5 is the Aunt of the victim and PW-7 is her cousin.
PW-6 is a tendered witness whereas PW-8 is the Investigating Officer.
4. PW-4 during trial stated that she was the daughter of the
Sweeper of the Inspection Bungalow and on the date of occurrence she
had gone to the tube well of the Inspection Bungalow for taking water
when she was forcibly taken away by the Appellant to a nearby room
whereafter the door was closed and then the Appellant forcibly
committed rape upon her. She tried to raise alarm but she was
prevented from doing so. In the meanwhile, some persons assembled
outside and started knocking at which the Appellant opened the door and
was caught by the people who were gathered there and handed him
over to the Police who reached soon thereafter. The Doctor found her
aged about 13 years and I find it difficult to accept that she did not raise
any alarm when she was being forcibly taken to the room. The fact that it
is the case of the prosecution that some persons gathered suspecting
some foul play also indicates that probably they had a reason for
suspicion at which the door was got opened. Here the age of the
Appellant/Prosecutrix is relevant. It appears the Appellant was only
about 19 years of age and neighbour of the Prosecutrix who was also a
girl of tender age. Moreover, the categorical statement of both the
Doctors that no sexual relationship had been established between the
parties, further belies the prosecution case.
5. In view of such, I am inclined to acquit the Appellant under
Patna High Court CR. APP (SJ) No.24 of 1997 dt.11-07-2011 3
Section 376 of the Indian Penal Code. However, in the facts of the case,
he is convicted under Section 354 of the Indian Penal Code and his
sentence is modified to the period already undergone by him during tiral.
6. In the result, the Appeal is dismissed with the aforesaid
modification.
(Anjana Prakash, J.)
Patna High Court, Patna,
Dated, 11th July, 2011.
NAFR/S.ALI